When Ron DeSantis and the Florida GOP punished Disney for its criticism of “Don’t Say Gay,” corporate speech that was clearly political in nature, their retaliation was not just fiscally shortsighted, it was illegal.
Any government attempt to restrict a corporation’s speech based on the content of that speech must satisfy the strictest scrutiny, meaning the restriction adopted by the government must be narrowly tailored to serve a compelling government interest, while restrictions based on political viewpoint have long been prohibited. Stripping Disney of its special taxing status in two Democrat-leaning counties in Florida, while leaving intact more than 1,800 similar tax districts in largely Republican counties, is not narrowly tailored to achieve any clear objective, nor is silencing political critics a compelling or even legitimate government interest in the first instance.
More than 10 years ago SCOTUS vested corporations with the same legal protections as other individuals when speaking on political issues. The Court in Citizens United [558 U.S. 310 (2010)] elevated the protection due corporate political speech, shielding corporate expenditures for political speech under the First Amendment. Maligned by the left, Citizens United empowers big oil, utilities, and other deep pocket industries to boost politicians like DeSantis, who symbiotically protect their corporate profits instead of protecting constituents worried about climate, even as Florida’s coasts sink visibly around them.
Vesting well-funded corporations with expanded rights of political speech may have sealed the fate of our rising oceans, but Citizens United also arms corporations like Disney with legal ballast to protect themselves against would-be autocrats who seek to silence them. Although DeSantis was quick to disavow any retaliatory motive in his move to strip Disney of its independent taxing status, his disavowal is absurd in light of the timing and his own comments. Late in 2021, DeSantis warned Florida’s most powerful companies not to display “corporate wokeness,” widely regarded as showing support for LGBT rights and racial justice. DeSantis threatened that if corporations did display “wokeness,” the state would “look under the hood” of their operations, meaning they would examine more closely business practices previously deemed acceptable.
Several months later, DeSantis made good on that threat. On March 28, DeSantis signed the controversial “Don’t Say Gay” bill into law, prohibiting teachers from discussing sexual orientation and encouraging parents to sue for ill-defined violations. On that same day, Disney’s CEO criticized the new law, vowing to see it repealed. Disney released a statement that the “Don’t Say Gay” bill “should never have been signed into law … Our goal as a company is for this law to be repealed by the legislature or struck down in the courts, and we remain committed to supporting the national and state organizations working to achieve that. We are dedicated to standing up for the rights and safety of LGBTQ+ members of the Disney family, as well as the LGBTQ+ community in Florida and across the country.”
DeSantis was triggered. The next day, he responded scathingly, rebuking Disney for its criticism, warning Disney that it doesn’t “run this state” and that it “will never run this state as long as I’m governor.” Two days later, after over 50 years of mutually beneficial operations, and during a special legislative session convened for an entirely unrelated purpose, DeSantis and the GOP announced plans to revoke Disney’s legal entitlement to independent tax status, while preserving over 1,800 similar tax districts in the state.
Evidence of DeSantis’ retaliatory motive isn’t limited to the calendar, sequence of events, or commonsense inference that Disney’s 50 plus years of successful taxing authority would not be revoked out of the blue. DeSantis’ and the GOP’s own statements render obvious their lust for retaliation, and make clear that they moved against Disney in direct consequence of Disney’s politically motivated speech against “Don’t Say Gay”:
- Florida Gov. DeSantis: “Disney and other woke corporations won’t get away with peddling their unchecked pressure campaigns any longer… [We] view corporations like Disney trying to impose a woke ideology on our state as a significant threat … we take a very big stand against that … If Disney wants to pick a fight, they chose the wrong guy.” At the bill signing ceremony, DeSantis continued, “You're [Disney] a corporation based in Burbank, California, and you're gonna marshal your economic might to attack the parents of my state ... We view that as a provocation, and we're going to fight back against that."
Florida Lt. Gov. Jeanette Núñez: “How dare they. [The Disney corporation] has no right to criticize legislation by duly elected legislators … Governor DeSantis and I won’t stand for it.” Appearing on Fox News, Núñez questioned whether companies like Disney even have the “right to criticize” state policymakers’ efforts.
- DeSantis’ Press Secretary Christina Pushaw: "It was unfortunate that Disney decided to wade into a political debate and attempt to overturn a common-sense law … The opponents of ‘Don’t Say Gay’ are ‘probably groomers.’” (slang for pedophiles).
- Republican Rep. Randy Fine, who sponsored the bill to strip Disney of its status: “When Disney kicked the hornet’s nest several weeks ago [by criticizing ‘Don’t Say Gay’], we started looking at special districts … This is something that makes sense to do in general but because of the way Disney has behaved, there’s now the political will to do it. Disney had the political power to prevent [stripping its status] for decades. What changed is bringing California values to Florida … You are a guest. Maybe you don’t deserve the special privileges anymore.”
- Republican Rep. Joe Harding, sponsor of “Don’t Say Gay”: "Large corporations must be held accountable.”
- Republican Jackie Toledo: "Once upon a time Disney was a great partner with the state of Florida … We've granted them privileges because of our shared history, shared goals and shared successes. Shamefully, Disney betrayed us [by opposing ‘Don’t Say Gay’]."
- Republican Sen. Jeff Brandes, who opposed the measure: The retaliatory law “leaves the sword of Damocles over Disney’s head for 13 months … It shuts them up.”
Brandes’ reference to 13 months reflects the effective date of the law, given that it won’t take effect for over a year, further suggesting it was political theater and a misuse of state power. Allowing over a year to pass will afford DeSantis and the GOP time to modify, retract or edit their work, and it will also give DeSantis room to try to address the fiscal implications. Since dissolution of the district will mean that the counties have to provide services Disney used to provide, like maintaining roads, and also requires the two counties to absorb nearly $1 billion in Disney debt, DeSantis clearly needs time to figure out who might pay for it. Delaying the measure by over a year suggests he knew it would never take effect as passed, but he wanted to show that he could and would punish Disney for its political statements. Brandes, the lone Republican vote against the measure, went on: “Nobody actually thinks this is going to happen. The cost to the state would be astronomical, potentially billions of dollars … DeSantis is relishing the feud … This is about staying on Fox. This is about extending the media life of this storyline. This is gold for him.” Last year, in an ominous but prescient warning of exactly this kind of GOP retribution targeting “woke” entities, Mitch McConnell said, “My advice to the corporate CEOs of America is to stay out of politics.”
Unfortunately for McConnell, DeSantis, Lt. Gov. Núñez and the rest of the GOP whose lust for punishing critics is palpable, the Supreme Court has forcibly struck down government efforts to deter corporations from speaking out in the first instance. Pacific Gas & Elec. Co. v. Public Util. Comm’n of Cal., 475 U. S. 1, 10 (1986). In Pacific Gas, the Supreme Court noted that “[T]he essential thrust of the First Amendment is to prohibit improper restraints on the voluntary public expression of ideas.” The Supreme Court struck down the government order at issue because it “discriminate[d] on the basis of the viewpoints of the selected speakers.” Similarly here, the GOP seeks to punish Disney, a corporation that has significantly benefitted Florida, that led the meteoric rise of Florida’s tourism industry, and employs more Floridians than any other employer in the state, specifically and demonstrably because of its disfavored political speech criticizing DeSantis and “Don’t Say Gay.”
Political speech is the heart of the First Amendment. Based on our founders’ mistrust of governmental power, the premier and exalted amendment to the U.S. Constitution was crafted to protect against the government’s “attempts to disfavor certain subjects or viewpoints,” and soundly “prohibits the government from restricting speech based on content of that speech.” United States v. Playboy Entertainment Group, Inc., 529 U. S. 803, 813 (2000) (striking down content-based restrictions). Using state power to silence political speech of critics has far wider, and more frightening implications, than whether sex education is taught in schools. That Florida is attacking gays, reproductive rights, and racial minorities simultaneously may be alarming, but it isn’t nearly as ominous as DeSantis’ and the GOP’s trampling of the First Amendment. Silencing political opponents, whether by imprisonment or by imposing an effective ideology tax, presents the steepest of autocratic slopes. If Floridians lose the right to publicly criticize or disagree with their government, they have lost the right to choose who that government will be. The principal reason autocrats and dictators control speech is to consolidate power. Silencing critics means the state controls the narrative, freed to create, spin, and disseminate alternative “facts” which are almost always designed to keep them in power.
During our time, silencing critics and controlling political speech means autocrats can say anything they want, the public won’t hear information to the contrary. It means an entire country believes Ukraine is the aggressor, and that the United States should be punished for provoking Russia. It means an entire country would feel justified in a preemptive nuclear strike that could wipe out millions. During our founders’ time, silencing political critics meant the Intolerable Acts, passed in 1774 to punish colonists for their political speech against the British Government. That act of political suppression led to the Revolutionary War, which eventually produced a brilliant treatise that was centuries ahead of its time. In laying out principles of freedom and free governance the world had not yet seen or conceived, the framers of the U.S. Constitution showed singular and unmatched genius that continues to inspire the world, including new countries like Ukraine, fighting now to the death for democracy and freedom of speech. Having suffered from state-imposed religion, our founders forged a new government scrupulously separated from the church. Having been punished and taxed for their speech against government, our founders wrote the First Amendment.
Understanding our nation’s history, fully grasping what led desperate men to give their lives to separate church and state, and why they took up arms to defend the right to criticize the government, is the only way to appreciate the First Amendment: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press…” To understand the historical underpinnings of the First Amendment is to revere it for the stroke of genius, timeless insight into human conduct, and beacon for universal freedom that it was. To understand its singular beauty is also the only way to grasp the danger of allowing DeSantis and the GOP to trample it.
Sabrina Haake is a 20-year federal litigator in Chicago, transitioning to South Florida. Haake's legal and political essays have been published in The Chicago Reader, Chicago Tribune, Howard University Rights and Globalization Law Review, Illinois Institute of Continuing Legal Education, Indiana International & Comparative Law Review, Inside Indiana Business, National Institute of Criminal Justice, Northwest Indiana Times, Post Tribune, SALON, Tulane Journal of International & Comparative Law, TEDx, and Windy City Times.